D: No civil law claim to retained data

In its decision of 12 May 2009, the Higher Regional Court Frankfurt (Oberlandesgericht Frankfurt) rejected a private law claim brought by the owner of a copyright vis-a-vis an Internet Service Provider under Section 113a Telecommunications Act for the surrender of retained data .

The dispute was based on the owner of a right calling on an Internet provider to issue information regarding the name and address of the customers to whom the dynamic IP-addresses through which his latest film was being offered on a file-sharing network, were allocated.

In an action for temporary protection of rights, the Regional Court Frankfurt allowed the claim by the owner of the rights for the desired information. The Provider successfully challenged this decision by filing a special appeal at the Higher Regional Court Frankfurt.

The Provider asserts that it did not store the traffic data in its databanks for invoicing purposes - as one would expect - but merely for the purposes of data retention. However, the purpose of such data, as specified in Section 113a Telecommunications Act, is restricted to official requests for information for public administration purposes. In this context the court specifies that the provision of the data to third parties for the purposes of litigation is, as a rule, excluded (See also BT-Dr (Bundestag Drucksache) 16/6979 p. 49).

The court furthermore acknowledges the strict purpose limitation for data processing procedures, set forth in this instance in Section 113a Telecommunications Act. Data collected and processed for a specific purpose, in this case data retention under the Telecommunications Act, may be used only for this purpose. The use of the data for any other purpose is permissible only with special permission.

Companies are advised not to exceed the specified processing purposes. If the data is to be used for other, new purposes, the permissibility of that data processing must be assessed separately. If data is no longer required but may not be deleted e.g. on the basis of statutory data storage requirements (e.g. Section 147 Tax Code; Section 113a Telecommunications Act), this data must be deactivated. This means: it must be identified so that it can no longer be analyzed in data inquiries. It may be used only for the storage purpose (e.g. tax audit, data retention).